Employers violate federal law if they fire, demote, harass, or discriminate against you for taking leave under the Family and Medical Leave Act (FMLA). And as long as you meet the employee qualifications, you are guaranteed your same (or comparable) job when you return from leave.
Our FMLA lawyers fight to get your job reinstated and your back wages paid in addition to recovering damages for your emotional distress and more. We are always ready to take your employer to trial in pursuit of the most money possible, though we can usually achieve a favorable settlement through negotiations alone.
1. What leave can I take under the FMLA?
FMLA law permits qualified employees to take up to 12 weeks of unpaid leave per year in order to:
- care for their immediate family member (spouse, parents, or children) suffering from a serious health condition;
- treat and recover from their own serious health condition, including pregnancy;
- bond with their new baby, adopted child, or foster care child; and/or
- address a military-related “qualifying exigency,” like being with an active-duty family member who is home on short-term leave
In addition, covered employees can take up to a 26-week-leave of absence to care for a seriously injured or ill family service member who is or was in the military.
Note that “serious health conditions” involve either inpatient care or ongoing treatment or supervision by a healthcare provider. This typically does not comprise elective procedures unless they result in an infection or other serious medical condition.
Also note that states typically have their own version of the FMLA that offers more benefits.1
2. Am I eligible for FMLA leave?
To be qualified to take FMLA leave under federal labor law, you must:
- work for a private sector employer with 50 or more employees or for a public agency (no matter the size); and
- have worked for your employer for at least one year; and
- have worked at least 1,250 hours in the preceding 12-month period of time; and
- work at a worksite where at least 50 people are employed (or were employed for at least 20 weeks in the current or prior year) within a 75-mile radius.
Note that if you are ineligible for FMLA leave, you could still be eligible under your individual state’s leave policy.2
3. Does the FMLA offer job protection?
Yes. In most cases, eligible employees who take FMLA leave are guaranteed to have their same job – or a “comparable job” – when the employees return to work. A “comparable job” would need to have the same status, duties, pay, and benefits as the original job.
But there are some exceptional circumstances where people on FMLA leave may have no job to go back to. This typically happens when there are mass layoffs or if the employer was already planning to eliminate the employee’s job for reasons unrelated to being on leave.3
4. What are FMLA violations?
An FMLA violation occurs any time your employer denies, constrains, or interferes with your right to take family or medical leave. Five common FMLA violations are
- Your employer retaliating against you for taking FMLA leave, such as by demoting you, firing you, harassing you, or disciplining you – or by threatening to retaliate against you.
- Your employer refusing to let you take FMLA leave even though you meet all the eligibility criteria.
- Your employer fudges your timesheets so that – on paper – it looks like you are ineligible to take FMLA leave.
- Your employer misclassifies you as an independent contractor so that you are not protected by the FMLA.
- Your employer counts your FMLA leave under its “no fault” attendance policy.4
Note that your employer cannot require a doctor’s note before granting you FMLA leave, but they can request certification from a healthcare provider. Learn more in our article, Can an employer require a doctor’s note in California?
5. What can I do if my FMLA rights were denied?
Employees who have been denied – or retaliated against for taking – FMLA leave can file a complaint with the U.S. Department of Labor, Wage and Hour Division (WHD). The WHD will investigate the FMLA claim and try to resolve it, which may involve bringing a court action to force your employer to comply.
Alternatively, you can bring a traditional civil lawsuit against your employer. Most of these cases resolve through negotiation. But failing that, you would have the option to take the matter all the way to trial.
If your employer violated your FMLA rights, contact our employment lawyers right away to discuss the best way to pursue your goals, be they job reinstatement, recovery of lost wages, or simply the ability to exercise your right to take leave. Our legal counsel may also be able to make your employer pay you damages for emotional distress as well as administrative fines and attorneys’ fees.5
In preparation for talking to an FMLA attorney, be sure to compile all the evidence you have that shows your rights have been violated, such as:
- office emails, voicemails, etc. of your employer discouraging you to take leave;
- names of witnesses who saw your employer discriminate against you for taking leave;
- timesheets that show you have worked enough hours to qualify for FMLA leave.
Note that you have only two years from an FMLA violation to bring a legal action, so contact an FMLA lawyer right away.6
For legal advice on employee rights, contact our California employment law attorneys. Our employment law firm’s practice areas include wrongful termination, employment discrimination, workplace harassment, and wage and hour claims.
- FMLA, U.S. Department of Labor. (See also the California Family Rights Act (CFRA).)
- Same. FMLA, Frequently Asked Questions, U.s. Department of Labor.
- See, for example, Liu v. Amway Corp (9th Circuit, 2003) .
- See, for example, Farrell v. Tri-County Metro. Transp. Dist. (9th Circuit, 2008) .
- Fact Sheet # 77B: Protection for Individuals under the FMLA, U.S. Department of Labor.